Labor & Employment Digest: July 2014

This year has already provided the legal world with a number of labor decisions and developments to consider, and it doesn't seem that this trend is likely to slow down any time soon. From the National Labor Relation Board's decision to allow student athletes to unionize at Northwestern University to allegations of wage fixing at some of the largest technology companies in the world, labor and employment law has seen no shortage of shake ups. Here we bring you voices from legal professionals with boots on the ground, to get their take on up-and-coming issues that are likely to impact the law of the workplace going forward.

Ex-employees with benefits

“A terminated employee who was fired for stealing and files a claim for benefits under the 401(k) plan still has to be paid his or her benefits. Employers should not try to hold the employee's retirement benefits hostage to other claims the company may have against the employee. It generally isn't permitted and can result in a lot of trouble for the employer, the plan and the plan fiduciaries. There may be some exceptions, but they are limited.”

“We think the California Supreme Court's decision in Duran v. U.S. Bank National Association is the right outcome based on the facts and law applicable to this case. The Court's holding reinforces the critical importance of manageability and correctly instructs trial courts to carefully consider whether a fair and reasonable trial plan can be crafted before certifying a class, and that individualized defenses and due process considerations must be included in this analysis.”

“Keeping pay equity at the forefront of the Obama Administration's civil rights agenda, Office of Federal Contract Compliance Programs (OFCCP) on May 5 submitted its proposed compensation data collection tool to the Office of Management and Budget (OMB) for review. The new rule will require federal contractors to submit to OFCCP employee compensation data, including race and gender, outside of a compliance review or charge of discrimination, giving OFCCP another vehicle for investigating pay disparities. If approved, the rule will be published for public comment. Stay tuned.”

—K. Joy Chin, Shareholder (Long Island), Jackson Lewis P.C.

‘Ban the box’ gains momentum

“With criminal background checks continuing to be among the Equal Employment Opportunity Commission's (EEOC) top priorities, a number of states and local jurisdictions have banned the box—meaning that they will no longer ask applicants about prior criminal records. This is consistent with the EEOC's earlier guidance where it advised against a one-size-fits-all policy with respect to criminal records. According to the EEOC, an employer should develop a ‘targeted’ screening procedure that considers the nature of the crime, how long ago the crime occurred and the nature of the job applied for. Employers that engage in this analysis are more likely to successfully meet the business necessity defense and avoid the EEOC's wrath.”

—David B. Ritter, partner (Chicago), Barnes & Thornburg LLP

Visa advice

“Now that the H-1B visa quota has been met and the opportunities for filing new H-1B visa applications are gone, employers need to review whether other options exist for specialized professionals and temporary workers. The E visa for international treaty traders and investors is often overlooked as is the possibility of the O-1 visa for highly regarded professionals and executives in the business world or in the sciences. In certain instances the J1 cultural exchange visas may also be appropriate.”